Smith v. Holly Hills Development et al

Filing 28

MEMORANDUM AND ORDER Granting Plaintiff's 23 Motion For Voluntary Dismissal Without Prejudice; and Awarding Attorneys' Fees To Defendants and Dismissing As Moot Defendants' 10 Motion To Dismiss. Signed by District Judge Avern Cohn. (SCha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELISSA FAY SMITH,
Plaintiff,
vs.

Case No. 13-12503

HOLLY HILLS DEVELOPMENT, LLC,
SHECTER LANDSCAPING, INC.,
KENNETH J. SHECTER, and CITY OF
KEEGO HARBOR,

HON. AVERN COHN

Defendants.
____________________________________/
MEMORANDUM AND ORDER GRANTING PLAINTIFF’S MOTION
FOR VOLUNTARY DISMISSAL WITHOUT PREJUDICE (Doc. 23)
AND AWARDING ATTORNEYS’ FEES TO DEFENDANTS AND
DISMISSING AS MOOT DEFENDANTS’ MOTION TO DISMISS (Doc. 10)
I.
This is a deprivation of rights case. Plaintiff owns residential property in the city of
Keego Harbor. Her property adjoins a landscaping development business owned by Holly
Hills Development, Shecter Landscaping, Inc. and Kenneth Shecter (the Shecter
defendants). Plaintiff alleges that the Shecter defendants have operated the business in
violation of Keego Harbor zoning ordinances. In addition, plaintiff alleges that the Shecter
defendants are violating a 2004 consent judgment entered into between them and Keego
Harbor in Oakland County Circuit Court. The complaint makes the following claims:
Count I

Violation of 42 U.S.C. § 1983 by the City of Keego Harbor

Count II

Violation of 42 U.S.C. § 1985(3) by all defendants

Count III

Violation of 42 U.S.C. § 1986 by all defendants1

The Shecter defendants filed a motion to dismiss (Doc. 10).
Subsequently, after oral argument, plaintiff filed a motion to voluntarily dismiss,
without prejudice, the claims against the Shecter defendants (Doc. 23).
The Court conditionally granted plaintiff’s motion subject to a determination of
appropriate attorneys’ fees (Doc. 25).
II.
Plaintiff’s motion for voluntary dismissal is GRANTED. The Court determines that
the appropriate amount of attorneys’ fees is $5,000.
The Shecter defendants’ motion to dismiss is DISMISSED AS MOOT. This case is
dismissed WITHOUT PREJUDICE against the Shecter defendants.
The case will proceed against Keego Harbor, only.
An explanation of the Court’s rationale follows.
III.
As the Court explained in its prior order, Fed. R. Civ. P. 41(a)(2) provides that a
district court may dismiss an action at the plaintiff’s request, without prejudice, “on terms
that the court considers proper.” Courts have discretion when dismissing an action under
Fed. R. Civ. P. 41(a)(2) to require a plaintiff to pay attorneys’ fees and costs attributable to
defending the action. Bell-Coker v. City of Lansing, No. 1:07-cv-812, 2009 WL 80291, at
*3 (W.D. Mich. Jan. 9, 2009) (citation omitted). Essentially, “[a] Rule 41(a)(2) dismissal

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The complaint also made claims of malicious prosecution, improper regulatory taking,
and nuisance. The Court declined to exercise subject-matter jurisdiction over the state
law claims. Therefore, these counts were dismissed. See (Doc. 19).
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may be conditioned on whatever terms the district court deems necessary to offset the
prejudice the defendant may suffer from a dismissal without prejudice.” Bridgeport Music,
Inc. v. Universal-MCA Music Pub., Inc., 583 F.3d 948, 953 (6th Cir. 2009) (citations
omitted).
Here, considering the Shecter defendants’ detailed billing statement (Doc. 26),
plaintiff’s objection (Doc. 27), and the record as a whole, $5,000 is a sufficient amount of
attorneys’ fees to be awarded to the Shecter defendants. This amount adequately restores
the Shecter defendants to the position they would have been in had plaintiff voluntarily
dismissed the case prior to the Shecter defendants briefing and arguing their own motion
to dismiss. It also takes into account that the legal work performed on behalf of the Shecter
defendants has not been wasted. Much of the legal research and analysis can be reused
when plaintiff refiles this case in state court.
IV.
For the reasons stated above, plaintiff’s motion to dismiss was granted, the Shecter
defendants’ motion to dismiss was dismissed as moot, and attorneys’ fees were awarded
to the Shecter defendants in the amount of $5,000. The case proceeds against Keego
Harbor.
SO ORDERED.
s/Avern Cohn
UNITED STATES DISTRICT JUDGE
Dated: November 8, 2013
I hereby certify that a copy of the foregoing document was mailed to the attorneys of record
on this date, November 8, 2013, by electronic and/or ordinary mail.
S/Carol Bethel for Sakne Chami
Case Manager, [phone]
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